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What can you do if your marriage has irretrievably broken down and your Dependant visa is about to expire?

QUESTION

I am separating from my wife and she is refusing to keep me on her Dependent visa.

My visa expires in a month and my employers have always made it clear that they won’t sponsor Employment visas – and I don’t know what to.

Do I need to find a new job if I lose my Hong Kong dependant visa in this way? 

How long would it take for a first time visa application?

Can I just keep quiet at work? They probably won’t check my visa status…

What would be the implications for that?

ANSWER

This is a scenario that presents itself all too frequentlyin actual fact, and on a previous occasion I have answered, this question. So at the beginning to the answer of this question on the blog you’ll find a link called marriage has irretrievably broken down. If you follow that link from 39,000ft that will give you a broad overview of the various immigration options that can apply in an instance where for one reason or another a dependent visa can’t be extended.

So essentially what you’re left with here is this idea that your current employer who normally would step forward to serve as your employment visa sponsor to allow you to adjust your immigration status so that you can continue to reside in Hong Kong notwithstanding the fact that your marriages are retrievably broken down.

It seems that that employer is not going to play ball with you. Therefore, in essence, you need to organise for yourself a new employment visa sponsor, someone who is prepared to play ball with you. The challenge that you are going to have here is that when you make your application, you will not be making your application within the auspices of your existing employment, you would have to be making your application from the perspective of a completely new employment. And in that regard, particularly if your dependent visa has expired at the time that you apply for a new employment visa you’re going to have to independently pass the provability test for an employment visa sponsored by a third party, arms length employer, namely that you possess special skills, knowledge and experience of value to and not readily available in Hong Kong, that no local person can reasonably expect it to take the work, that the compensation is broadly commensurate with market rates for the type of work, but most importantly in this particular instance that you are deemed a professional for the purposes of the general employment policy here, if you have a university degree with at least two years post graduation working experience in a managerial or supervisor in capacity, and the other aspects of the approvability criteria for an employment visa are satisfied, then you can expect to go on to get approved even though you’re coming off the back of a visitor visa which was only available to you in the wake of your dependent visa expiring, which in turn wasn’t being sponsored by your previous employer.

That is, your incumbent employer and normally the Immigration Department are positively minded to approve applications where there’s been an irretrievable breakdown in marriage and the dependent visa can’t be extended if the employment visa sponsorship that follows comes from an incumbent employer. So you’ll be losing some aspects of favourable consideration by not making an application with the support of your existing employer.

But if you can pass the probability criteria as I’ve just outlined anyway in the guise of a new employer, then everything should be okay. So that deals with essentially how you manage the situation with a new employer who’s going to be in a position to sponsor a new employment visa for you.

In terms of you just keeping quiet at work, that is not letting your current employer know that there’s been a material change in your immigration circumstances that is not recommended, I repeat not recommended, because the moment that your dependent visa expires you will become not lawfully employable.

In any event, the moment your dependent visa expires you’re going to have to leave Hong Kong for a quick trip to Macau and then come back and re enter as a visitor, and then maintain that status until you’re able to reorganise a new residence visa for yourself ostensibly on the strength of a new employment offer that you’ve got.

But under no circumstances should you just stay quiet because you’ll be breaching your conditions of state from the very first moment that you report for work whilst you’re holding a visitor visa. And the fact that they won’t check your immigration status really doesn’t absolve you from the responsibility to maintain that you are compliant in your immigration arrangements here.

And the implications are, well, bad. Very bad, potentially jail, serious fine, and will certainly disrupt your residence in Hong Kong. So unfortunately whilst your circumstances are not great you don’t have a lot of options available to you, unfortunately. But as I say, if you’re able to secure a job offer from a new employer and in the context of that job offer you are deemed a professional, then there’s no reason realistically we can’t expect to be able to adjust your status through from whatever you’ve got at the time that you make that application through to employment so that you can remain in Hong Kong.

So I think that’s about it. Application to change your immigration status through to an employment visa sponsored by a new employer should take between four – six weeks from the day that you supply the immigration department with all the papers that they need to give due and full consideration to the application.

Okay, I hope you found that useful.

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